PLEASE READ THESE GENERAL TERMS AND CONDITIONS (the “GTCs”) CAREFULLY. THE GTCs CONTAIN CONTRACTUAL RESTRICTIONS ON YOUR RIGHTS TO USE THE “B2B SERVICES” AND THE “GROUP CONTENT” (DEFINED BELOW), RESTRICTIONS ON RIGHTS YOU CAN ENFORCE AGAINST THE “CERTUS HOLDCO, INC ” (DEFINED BELOW) AND LIMITATIONS ON THE CERTUS HOLDCO, INC ‘S LIABILITY. BY EXECUTING THESE GTCs, TOGETHER WITH “PROJECT DOCUMENTS” (DEFINED BELOW) (COLLECTIVELY, THE “AGREEMENT”, IT BEING EXPRESSLY UNDERSTOOD AND AGREED THAT ALL SUCH PROJECT DOCUMENTS ARE INTEGRAL TO THE AGREEMENT) WITH ONE OR MORE OF THE ENTITIES WITHIN THE CERTUS HOLDCO, INC, YOU AGREE TO BE BOUND BY THE GTCs, THE PROJECTS DOUCMENTS, AND ALL OTHER COMPONENTS OF THE AGREEMENT, INCLUDING THE WARRANTY DISCLAIMERS, LIMITATIONS OF LIABILITY AND TERMINATION PROVISIONS SET FORTH IN THESE GTCs. THESE TERMS ARE SUBJECT TO CHANGE, AND ANY USE OF ANY SERVICES OR PRODUCTS OFFERED BY THE CERTUS HOLDCO, INC BY YOU AFTER SUCH CHANGES ARE POSTED SHALL BE DEEMED YOUR AGREEMENT TO SUCH CHANGES.
General Terms and Conditions
These General Terms and Conditions (the (“GTCs”), (collectively with the “Project Documents”, as defined herein, the “Agreement”) are entered into by and between CERTUS HOLDCO, INC (defined below) and the customer user of the “B2B Services” and “Group Content”(each such term is defined herein) (such Customer, the “Customer”), these GTCs comprise the general terms and conditions under which Customer agrees for one or more Affiliates within the CERTUS HOLDCO, INC to provide the B2B Services and Group Content to Customer. The Agreement may be supplemented from time to time by additional written agreements of the parties, such as the Project Document(s).
NOW, THEREFORE, in consideration of the premises and obligations contained herein, it is agreed as follows:
1. DEFINITIONS
1.1 “Access Credentials” shall have the meaning set forth in Section 4.13 of these GTCs.
1.2 “Agreement” means the Project Documents, together with these GTCs, and all exhibits, annexes, addenda, appendices, schedules and signature pages thereto and hereto, together with each amendment hereto and thereto, if any. The Agreement may be supplemented from time to time by additional written agreements of the parties, all of which shall be included and shall become part of the Agreement.
1.3 “CERTUS HOLDCO, INC ” means, collectively, CERTUS HOLDCO, INC, a Delaware corporation, (“CHC”) and its Affiliates. As used in the foregoing definition and elsewhere through these GTCs or in the applicable Project Document(s), unless the context otherwise so requires, an “Affiliate” whether or not capitalized, and whether plural or singular as the context requires, shall mean and refer to CERTUS HOLDCO, INC and any of its existing or future subsidiaries, whether direct, indirect, wholly-owned or partially-owned; provided, however, that, for the avoidance of doubt, “Affiliates” (whether or not capitalized) shall not include or refer to any direct or indirect parent companies of CERTUS HOLDCO, INC.
1.4 “CERTUS HOLDCO, INC Proprietary Rights” shall have the meaning set forth in Section 6.1 of these GTCs.
1.5 “AUP” shall have the meaning set forth in Section 4.1 of these GTCs.
1.6 “Available” shall have the meaning set forth in Section 4.2 of these GTCs.
1.7 “Availability Requirement” shall have the meaning set forth in Section 4.2 of these GTCs.
1.8 “B2B Services” shall mean, individually and collectively, any or all of the following business-to-business products and services (including implementation services related thereto) provided or to be provided, including access to the Group Content by the applicable Affiliate(s) of CERTUS HOLDCO, INC to Customer, as described in the Project Documents, and such other services as the parties may agree to be performed from time-to-time:
(a) the “CERTUS HOLDCO, INC Online Training System” as defined and described in Section 2.1 of these GTCs Website based training programs provided by one or more Affiliate(s) within the CERTUS HOLDCO, INC.
(b) Instructor-led class-based training programs provided by one or more Affiliate(s) with the CERTUS HOLDCO, INC (herein, “CERTUS HOLDCO, INC Onsite”); or
(c) Hosting, managing, maintaining and supporting a single production instance (i.e., the Custom Portal) of the SaaS Software in an operations environment for remote access and use by multiple End-Users solely for Customer’s internal business purposes (herein, the “SaaS Services”).
1.9 “Confidential Information” shall mean any and all information or materials provided by one party to the other that are in tangible form and labeled “confidential” or the like, or, if disclosed orally, are identified as being confidential at the time of disclosure, or any other information, observed when at a facility of the other or a third party, that a reasonable business person would understand to be not publicly available, including, without limitation, all trade secrets, training materials, and student and corporate client lists; but shall not include information or materials that (i) were, on the Effective Date, generally known to the public; or (ii) become generally known to the public after the Effective Date other than as a result of the act or omission of the receiving party; or (iii) were rightfully known to the receiving party prior to that party’s receiving same from the disclosing party; or (iv) the receiving party lawfully received from a third party without that third party’s breach of agreement or obligation of trust; or (v) are independently developed by the receiving party.
1.10 “Course Administration Data” means data concerning participant status, progress, individual user scores by course and any other relevant transcript information or other reports or information pertaining to the administration and monitoring of End-User utilization and completion of course materials and other Group Content.
1.11 “Cure Period” shall have the meaning set forth in Section 5.3 of these GTCs. Agreement.
1.12 “Custom Portal” shall have the meaning set forth in Section 2.2 of these GTCs.
1.13 “Customer Content” shall mean all trademarks and all logos, video, records, works of authorship, audio, text, graphics, animation, and other copyrightable content supplied by Customer to CERTUS HOLDCO, INC or any of its Affiliates for distribution and deployment through the Group-Provided LMS and any Personal Data or other Customer data or Confidential Information.
1.14 “Customer-Provided LMS” means the learning management system solution owned, used by, or licensed by (as Licensee) the Customer to deploy the Group Content, other than the Group-Provided LMS.
1.15 “Effective Date” shall mean the effective date of the commencement of the B2B Services as agreed by the parties including as set forth in any Project Document(s).
1.16 “End-User” shall mean those employees, consultants, contractors, or other users identified by Customer who have been registered by administrators of Customer and who have satisfied eligibility criteria listed in the applicable Project Documents or SaaS Documentation or other agreement with CERTUS HOLDCO, INC or its Affiliate(s) in order to access B2B Services (including the Group Content) online.
1.17 “Exceptions” means, for purposes of calculating the Availability Requirement, that neither (i) the SaaS Services will be considered not Available nor (ii) will any Service Level Failure be deemed to occur in connection with any failure to meet the Availability Requirement or impaired ability of Customer or its End-Users to access or use the SaaS Services that is due, in whole or in part, to any of the following: (a) act or omission by Customer or any End-User, access to or use of the SaaS Services by Customer or any End-User, or using Customer’s or an End-User’s Access Credentials, that does not strictly comply with the Agreement (including these GTCs) and the SaaS Documentation; (b) any delay or failure of performance caused in whole or in part by Customer’s delay in performing, or failure to perform, any of its obligations under the Agreement (including these GTCs); (c) Customer’s or any of its End-User’s Internet connectivity; (d) Force Majeure Event; (e) failure, interruption, outage or other problem with any software, hardware, system, network, facility or other matter not supplied by CERTUS HOLDCO, INC (or the applicable Affiliate therein) pursuant to the Agreement; (f) Scheduled Downtime; (g) disabling, suspension or termination of the SaaS Services pursuant to Section 4.16; (h) any time the SaaS Services are not Available due to circumstances not within the control of CERTUS HOLDCO, INC or its Affiliate(s), including modifications of the SaaS Services by any person other than CERTUS HOLDCO, INC or its Affiliate(s) or a person acting at their or its direction, general Internet outages, failure of Customer systems or Customer connectivity (including direct connectivity and virtual private network connectivity to the SaaS Services), computer and telecommunications failures and delays, and network intrusions or denial-of-service or other criminal attacks.
1.18 “Group Content” means training and education courses, lessons, presentations, learning modules, simulations, and any and all other instructional content and products developed, owned or licensed (as Licensee) by CERTUS HOLDCO, INC or any of its Affiliate(s), regardless of whether deployed in-person (i.e., through CERTUS HOLDCO, INC Onsite), through the Group-Provided LMS or the Customer-Provided LMS.
1.19 “Group Content Support Services” means those certain technical and customer support services described in Sections 2.6-2.10 below, to be provided regardless of whether the Group Content is deployed through a Customer-Provided LMS or through the Group-Provided LMS.
1.20 “Group-Provided LMS” means one or more proprietary, internet-based learning management systems and distance education platforms which are owned or later acquired by CERTUS HOLDCO, INC or any of its Affiliate(s) (the access to and use of which is made available to the Customer and its End-Users pursuant to the terms and conditions of the Agreement), to administer, deliver and deploy the Group Content to End-Users.
1.21 “Personal Data” means information that Customer provides or for which Customer provides access to CERTUS HOLDCO, INC or its Affiliate(s), or information which CERTUS HOLDCO, INC or its Affiliate(s) creates or obtains on behalf of Customer, in accordance with this Agreement that is subject to U.S. and/or a state of the U.S. privacy and data protection law and: (a) directly or indirectly identifies an individual (including, for example, names, signatures, addresses, telephone numbers, e-mail addresses and other unique identifiers); or (b) can be used to authenticate an individual (including, without limitation, employee identification numbers, government-issued identification numbers, passwords or PINs, user identification and account access credentials or passwords, financial account numbers, credit report information, student information, biometric, genetic, health, or health insurance data, answers to security questions and other personal identifiers). Customer’s business contact information is not by itself Personal Data. Personal Data does not include any information that is Prohibited Data.
1.22 “Prohibited Data” means any information subject to the EU General Data Protection Regulation or any other non-U.S. privacy or data protection law, or any information of a subject of Personal Data that is subject to a request to opt-out of the sale thereof or the deletion thereof.
1.23 “Project Documents” means the Proposals, Statements of Work, SaaS Services Agreements (as each such capitalized term is defined herein), purchase orders, sales orders, and other agreements, together with all exhibits, schedules, addenda, appendices, or amendments thereto, entered into with any CERTUS HOLDCO, INC or its applicable Affiliate(s), which describes the specific B2B Services and access to the Group Content purchased by Customer from CERTUS HOLDCO, INC.
1.24 “Resultant Content” shall have the meaning set forth in Section 4.12 of these GTCs.
1.25 “SaaS Services Agreement” shall mean that separate software-as-a-service provider Agreement or other agreement that sets forth the terms and conditions with respect to the provision of the SaaS Services (including access to the Group-Provided LMS) by the applicable Affiliate(s) of CERTUS HOLDCO, INC to Customer, together with all Exhibits, Schedules and Appendixes thereto, which, if any, shall (i) be signed by the parties and may reference these GTCs; and (ii) state the pertinent engagement parameters, which include, but are not limited to, SaaS Services access fees, pricing, payment, expense reimbursement, delivery time frame and other terms with respect to SaaS Services.
1.26 “SaaS Documentation” shall mean any user guides, help files or written instruction manuals regarding the use of the SaaS Services, whether in printed or electronic form, provided by the applicable Affiliate(s) within the CERTUS HOLDCO, INC to Customer.
1.27 “SaaS Services” shall have the meaning set forth in Section 1.8(c) above.
1.28 “SaaS Software” shall mean any proprietary solutions and operating methodology software provided by CERTUS HOLDCO, INC or its Affiliates with respect to the SaaS Services, including, without limitation, the Group-Provided LMS and access thereto.
1.29 “Safeguards” shall have the meaning set forth in Section 4.20 of these GTCs.
1.30 “Scheduled Downtime” means the time when the SaaS Services are not Available due to: (a) routine repairs, maintenance, improvements, updates or changes to the CERTUS HOLDCO, INC systems or SaaS Services; (b) compliance with any law; (c) avoiding infringement or misappropriation of third party intellectual property rights; (d) ensuring and maintaining the availability, security and performance of the CERTUS HOLDCO, INC systems; or (e) CHC’s or its Affiliate(s)’ exercise of its reasonable judgment.
1.31 “Service Allocation” shall have the meaning set forth in Section 4.19 of these GTCs.
1.32 “Service Period” shall have the meaning set forth in Section 4.2 of these GTCs.
1.33 “Service Level Failure” shall have the meaning set forth in Section 4.2 of these GTCs.
1.34 “Statement of Work” or “SOW” or “Proposal” shall mean a statement of work or proposal or any agreement that details the relationship of the parties with regard to B2B Services or a specific project, which document shall (i) be signed by the parties and may reference these GTCs; and (ii) state the pertinent engagement parameters, which include, but are not limited to, fees, pricing, payment, expense reimbursement, delivery time frame, and other terms.
1.35 “Work Product” shall have the meaning set forth in Section 6.1 of this these GTCs.
2. CERTUS HOLDCO, INC ONLINE TRAINING SYSTEM CUSTOM PORTAL BUILD-OUT; ADMINISTRATION OF ONLINE TRAINING COURSES; GROUP CONTENT SUPPORT SERVICES
2.1 Engagement. The “CERTUS HOLDCO, INC Online Training System” is an online, cloud-based system for delivering comprehensive training management, content delivery (including delivery of the Group Content), knowledge assessments and reporting solutions to business enterprises. Applications for the CERTUS HOLDCO, INC Online Training System include technical skills & safety training, centralized training management, the administration of training initiative and campaigns, and the reporting associated therewith. Each engagement for the CERTUS HOLDCO, INC Online Training System shall be subject to, and governed by, provisions set forth in the separately signed Project Documents, in addition to these GTCs.
2.2 Custom Portal; Content Deployment. Once engaged under the Project Documents to provide the CERTUS HOLDCO, INC Online Training System, the applicable Affiliate(s) of CERTUS HOLDCO, INC will create a customized online End-User interface with a unique URL (the “Custom Portal”), on behalf of Customer. The Custom Portal will be configured to Customer’s working environment (departments, job titles, locations). Customer will be provided access to the Custom Portal to review the presentation and functionality of the Custom Portal before the Custom Portal will become “live” and operational to End-Users. Unless the applicable Project Documents provide otherwise, Customer will have two (2) business days from the date such access is provided to notify the applicable Affiliate(s) of CERTUS HOLDCO, INC in writing of any non-conformities or defects with the Custom Portal. Once an End-User logs in to the Custom Portal, the Group Content (together with any Customer Content, if and to the extent provided and authorized by the Customer under the Project Documents) will be deployed and distributed to the End-User through either the Group-Provided LMS or through the Customer-Provided LMS, per the terms of the Project Documents. The provisions of Section 4 of Agreement (captioned “SAAS SERVICES — GROUP-PROVIDED LMS”) will apply if (and only if) the Customer has engaged the CERTUS HOLDCO, INC to deploy the Group Content through the Group-Provided LMS (as set forth in the Project Documents).
2.3 Content. The applicable Affiliate(s) will populate the Custom Portal with the Group Content (and, if applicable, the Customer Content) as specified in the Project Documents, including, if and to the extent applicable under the Project Documents, the pre- and post-tests available for the course(s) and other Group Content to which the Customer has purchased access under the Project Documents. In the event that the Customer is utilizing Customer-Provided LMS (instead of the Group-Provided LMS) to deploy and distribute the Group Content, if applicable, and the Customer Content, the applicable Affiliate(s) will load to the Custom Portal the applicable Group Content and Customer Content (as described in the Project Documents) in SCORM or AICC format for deployment and distribution to the End-User through the Customer-Provided LMS.
2.4 End-User Access. The applicable Affiliate(s) will make the Group Content (and, as applicable, the Customer Content) available to the End-Users through the Custom Portal. The End-Users will be granted the ability to access to such content through the Custom Portal, by entering a unique username and password. Each End-User will be assigned particular Group Content by administrators of Customer. Once an End-User begins a learning course on the Custom Portal, a “course use” will be assessed with respect to such End-User consistent with the plan purchased under the Project Documents.
2.5 System Availability. The applicable Affiliate(s) will provide at least ninety nine and five-tenths percent (99.5%) percent level of availability to access and use the Group Content (and, as applicable the Customer Content), and, if and to the extent provided in the Project Documents and subject to the provision of Section 4 of these GTCs, the Group-Provided LMS, 24 hours per day, 7 days per week, including all holidays but excluding inability to access the Group Content, the Customer Content, or Group-Provided LMS, as applicable, due to (i) scheduled maintenance, (ii) acts or omissions of Customer, its End-Users or their respective agents, (iii) issues arising from bugs or other problems in the software, firmware or hardware of third parties, including, without limitation, the Customer-Provided LMS; (iv) delays or failures due to circumstances beyond the reasonable control or CERTUS HOLDCO, INC or its Affiliates; or (v) any outage, network unavailability or downtime outside of CHC’s (or its Affiliates’) hosting service provider’s network.
2.6 Call Center Availability. The applicable Affiliate(s) will provide Call Center support for Customer Monday to Friday, between the hours of 9:00 AM to 5:00 PM Central Time, excluding US holidays, pursuant to the terms and conditions set forth in these GTCs and the applicable Project Documents.
2.7 Backup. The applicable Affiliate(s) will provide backup services of the Course Administration Data on a schedule of (1) once per day and insuring that up to seven (7) days of backup Course Administration Data is available at all times. The applicable Affiliate(s) will use commercially reasonable efforts to ensure that copies of the most recent seven (7) days of backup Course Administration Data are held offsite from the CERTUS HOLDCO, INC designated data center.
2.8 Security. CERTUS HOLDCO, INC maintains a commercially reasonable security process and protocol. CERTUS HOLDCO, INC ‘s designated data center controls and processes are annually audited by an independent third party. Access to the audit report requires an NDA with ORCS Web.
2.9 Help Desk. The applicable Affiliate(s) of CERTUS HOLDCO, INC will use commercially reasonable efforts to support the functionality of the Group Content, including, responding to software problems and errors with respect to the Group Content reported by Customer to the CERTUS HOLDCO, INC Help Desk according to the following problem severity:
(a) “Level 1” is an emergency production situation where the Group Content and associated software (collectively, the “Group Content Software”) is totally inoperable or fails catastrophically and there is no workaround. the applicable Affiliate(s) will guarantee response to and make best efforts to resolve Level 1 issues within 4 hours.
(b) “Level 2” is a detrimental situation (and there is no workaround) where (a) performance degrades substantially under reasonable loads causing a severe impact on use; (b) the Group Content Software is usable but materially incomplete; or (c) one or more mainline functions or commands is inoperable. The applicable Affiliate(s) will guarantee response to and make best efforts to resolve Level 2 issues within 4 hours.
(c) “Level 3” is an inconvenient situation where the Group Content Software is usable but does not provide a function in the most convenient manner. the applicable Affiliate(s) will guarantee response to Level 3 within 24 hours of the report filing.
2.10 Group Content Support Services. Subject always to the limitations set forth in the limitation of liability and disclaimers provisions set forth in these GTCs and elsewhere in the Agreement, one or more of CHC’s Affiliates will provide to Customer the following Group Content Support Services, which may be amended by such Affiliate(s) in their sole discretion: (a) temporary maintenance and/or moving of the Group Content application or applications to another server due to hardware failure or other need for extended maintenance and/or upgrades of the current servers in use by Customer, (b) daily backup of the Group Content, Customer Content, and Course Administration Data from time to time as agreed by the parties, (c) a repository of backup media kept in the event of a disaster restore incident, as from time to time agreed by the parties, and for a fee agreed by the parties, (d) correction of anomalies and errors in the Group Content Software, and (e) additional phone support, first-level diagnostic support, and other support as from time to time and agreed by the parties, and for a fee agreed by the parties.
2.11 Uncontrollable Events. Neither CERTUS HOLDCO, INC nor any of its Affiliates shall have any responsibility or liability for failures of the Custom Portal, the Group-Provided LMS, or the Group Content Software due to events beyond their reasonable control, including, without limitation, the following events:
(a) Failures due to communications circuits, or any other circuit provided by third party vendors, including, without limitation, providers of Customer-Provided LMS.
(b) The inability of Customer to access an CERTUS HOLDCO, INC gateway router due to ISP problems or any other failure not caused by the CERTUS HOLDCO, INC gateway router.
(c) Failures caused by application, operating system, communication software, or hardware installed on Customer equipment or facilities (including, but not limited to, web browsers, proxy servers, or firewalls).
(d) Failures due to use of unsupported browsers by Customer, its clients or End-Users (Note: at the time of these GTCs the browsers supported by the CERTUS HOLDCO, INC ‘s systems are Microsoft Internet Explorer 10 and higher, Mozilla Firefox 12 and higher, and Google Chrome).
(e) Failures due to acts of God or nature or malicious acts of anyone other than personnel employed or engaged by CERTUS HOLDCO, INC or any of its Affiliates.
(f) An event of Force Majeure.
3. CERTUS HOLDCO, INC ONSITE.
3.1 Engagement. Each engagement for CERTUS HOLDCO, INC Onsite Instructor-led courses shall have the Days, Course, Description, Number of Students, Price and other terms and conditions as set forth in the applicable Project Documents, in addition to the terms and conditions set forth in these GTCs.
3.2 Class Size. The standard class size is up to 20 students. All classroom materials will be included for the specified number of students in the applicable Project Documents. Training dates are reserved on a first to confirm basis and may not be available if scheduled less than four weeks in advance. CERTUS HOLDCO, INC recommends scheduling as soon as possible.
3.3 Cancellations. Cancellations within fourteen (14) days prior to a scheduled event will be subject to a cancellation fee of $2,500. If the scheduled event is hosted at a later date, a $1,500 change fee will be assessed in addition to the original cost.
3.4 Instructors. CERTUS HOLDCO, INC or its Affiliate(s) shall have the final and sole responsibility for Instructor personnel placement.
4. SAAS SERVICES — GROUP-PROVIDED LMS. If and to the extent that the Customer has purchased and has elected to deploy the Group Content through the Group-Provided LMS (as opposed to the Customer-Provided LMS) as set forth in the Project Documents, the following terms and conditions set forth in this Section 4 shall apply.
4.1 Access to SaaS Services. If purchased by the Customer under the applicable Project Document(s), access to the Group-Provided LMS, together with the hosting, technical, and customer support services associated therewith, will be provided to the Customer as software-as-a-service, pursuant to and in accordance with the terms and conditions set forth in a SaaS Agreement by and between Customer and the applicable Affiliate(s) within the CERTUS HOLDCO, INC. Subject to and conditioned upon Customer’s and its End-Users’ compliance with the terms and conditions of the GTCs and the Project Documents (including any SaaS Services Agreements), the applicable Affiliate(s) of the CERTUS HOLDCO, INC hereby grant to Customer a revocable, non-exclusive, non-transferrable (except in compliance with Section 12.3) right to access and use the SaaS Services during the term of the applicable SaaS Services Agreement, solely for use by End-Users in accordance with the terms and conditions in these GTCs and in the Agreement generally. Such permitted use is moreover limited solely to Customer’s internal business purposes. Customer and its End-Users shall access and use the SaaS Services only in compliance with applicable laws and any CERTUS HOLDCO, INC acceptable use policy posted on a CERTUS HOLDCO, INC website or associated with the SaaS Services (“AUP”). Customer acknowledges and agrees that the operation of Customer’s business is not dependent upon the uninterrupted or error-free operation of the SaaS Services.
4.2 SaaS Service Levels. Subject to the terms and conditions of the Agreement, the applicable Affiliate(s) of CERTUS HOLDCO, INC shall use commercially reasonable efforts to make the SaaS Services available for access and use by Customer and its End-Users over the Internet and operating in material accordance with the SaaS Documentation (“Available”) at least ninety-nine and five-tenths percent (99.5%) of the time as measured over the course of each calendar month during the term of this Agreement (“Service Period”), excluding unavailability as a result of any of the Exceptions (“Availability Requirement”). Neither CERTUS HOLDCO, INC nor any of its Affiliates are liable to Customer for failing to provide the SaaS Services unless such failure results from a material failure of the SaaS Services to meet the Availability Requirement (“Service Level Failure”), or results from the recklessness, willful misconduct or intentional breach of the Agreement by CERTUS HOLDCO, INC or its applicable Affiliate(s). Customer acknowledges and agrees that the SaaS Services in any non-production instance or testing environment for evaluation purposes are at-risk services and, as such, not subject to any Availability Requirement nor eligible for any service credit in the form of any term extension, cash value, monetary payment or credit against any fees or costs incurred.
4.3 Scheduled Maintenance. CERTUS HOLDCO, INC reserves the right to take down applicable servers containing the SaaS Services and SaaS Software to conduct regular periodic routine maintenance and backups from time to time.
4.4 SaaS Support Services. Subject always to the limitations of liability and disclaimer provisions as set forth in these GTCs and elsewhere in the Agreement, in addition to the Group Content Support Services, if and to the extent that the Customer has purchased access to the Group-Provided LMS and pursuant to the terms and conditions set forth in the applicable Project Documents (including the SaaS Agreement(s) entered into by and between the Customer and the applicable Affiliate(s) within the CERTUS HOLDCO, INC ), such Affiliate(s) will provide to Customer the following SaaS Support Services: (a) temporary maintenance and/or moving of the Group-Provided LMS application or applications to another server due to hardware failure or the other need for extended maintenance and or upgrades of the current servers in use by Customer, (b) daily backup of the Group-Provided LMS (and any Customer Content deployed thereby) and associated SaaS Software as from time to time agreed by the parties, including as set forth in any SaaS Services Agreement, (c) a repository of backup media kept in the event of a disaster restore incident, as set forth in any SaaS Services Agreement, and for a fee agreed upon by the parties, (d) correction of anomalies and errors in the SaaS Software, and (e) additional phone support, first-level diagnostic support, and other support as from time to time and agreed by the parties, and for a fee agreed by the parties, as set forth in any SaaS Services Agreement.
4.5 CERTUS HOLDCO, INC Limited License Grant. Subject to the terms and conditions of the Agreement, the applicable Affiliate(s) of CERTUS HOLDCO, INC hereby grant(s) to Customer, during the Term, a nontransferable (except as provided in the Agreement), nonexclusive, revocable limited license to use the SaaS Documentation solely for the purposes of its own business process, and as described in any SaaS Services Agreement, in connection with its use of the SaaS Services, namely, to support End-Users’ use of the SaaS Services.
4.6 CERTUS HOLDCO, INC Trademark and Copyright Notices. Customer acknowledges and agrees that CERTUS HOLDCO, INC and its Affiliate(s) reserve the right to display the CERTUS HOLDCO, INC trademarks (including brand names and product logos) designated by CERTUS HOLDCO, INC for use in connection with the marketing and promotion of the SaaS Services. Customer will not remove any trademarks, or trademark or copyright notices from the SaaS Software or SaaS Documentation.
4.7 SaaS Software Restrictions. The Group-Provided LMS, SaaS Services, SaaS Documentation and the SaaS Software contain trade secrets and other valuable proprietary information owned by CHC, its Affiliates, or their respective vendors. Customer shall not and shall not permit its End-User or any other third party to, access or use the Group-Provided LMS, SaaS Services, SaaS Software or SaaS Documentation except as expressly permitted by the Agreement and, in the case of any third-party materials, the applicable third party license agreement. For purposes of clarity and without limiting the generality of the foregoing, Customer and its End-Users shall not, except as the Agreement expressly permits: (a) modify, make derivative works or improvements, or alter or permit any party to modify, make derivative works or improvements, or alter, any part of the Group-Provided LMS, SaaS Services, SaaS Software or SaaS Documentation; (b) copy or permit any party to copy the Group-Provided LMS, SaaS Services, SaaS Software or SaaS Documentation in part or in whole; (c) reverse engineer, de-compile, disassemble, decode, adapt or otherwise attempt to derive or gain access to the source code of SaaS Software, or other proprietary information from the Group-Provided LMS, SaaS Services or the SaaS Software, in whole or in part; (d) rent, lend, sell, sublicense, assign, distribute, publish, transfer, lease or otherwise make available the Group-Provided LMS, SaaS Software, SaaS Documentation or SaaS Services to any third party, including on or in connection with the Internet or any time-sharing, service bureau, software as a service, cloud or other technology or service; (e) bypass or breach any security device or protection used by the Group-Provided LMS, SaaS Services, SaaS Software or SaaS Documentation or access or use the Group-Provided LMS, SaaS Services, SaaS Software or SaaS Documentation other than by an End-User through the use of his or her own then valid Access Credentials; (f) input, upload, transmit or otherwise provide to or through the Group-Provided LMS or SaaS Services, any information or materials that are unlawful or injurious, or contain, transmit or activate any harmful code; (g) damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Group-Provided LMS or SaaS Services or CERTUS HOLDCO, INC ‘s provision of services to any third party, in whole or in part; (h) remove, delete, alter or obscure any trademarks, SaaS Documentation, warranties or disclaimers, or any copyright, trademark, patent or other intellectual property or proprietary rights notices from any the Group-Provided LMS, SaaS Services, SaaS Software or SaaS Documentation, including any copy thereof; (i) access or use the Group-Provided LMS, SaaS Services, SaaS Software or SaaS Documentation in any manner or for any purpose that infringes, misappropriates or otherwise violates any intellectual property right or other right of any third party (including by any unauthorized access to, misappropriation, use, alteration, destruction or disclosure of the data of any other Client of CERTUS HOLDCO, INC or its Affiliates), or that violates any applicable law; (j) access or disable any CERTUS HOLDCO, INC or third party data, software or network (other than Customer’s instance of the SaaS Services under the Agreement); (k) upload, or use the SaaS Services to process, manage, analyze, summarize or report, any data of any person or entity other than Customer; (l) access or use the Group-Provided LMS, SaaS Services, SaaS Software or SaaS Documentation for purposes of competitive analysis of the Group-Provided LMS, SaaS Services, SaaS Software or SaaS Documentation, the development, provision or use of a competing software service or product or any other purpose that is to the CERTUS HOLDCO, INC ‘s detriment or commercial disadvantage; or (m) otherwise access or use the Group-Provided LMS, SaaS Services, SaaS Software or SaaS Documentation beyond the scope of the authorization granted under the Agreement. If Customer becomes aware of any actual or threatened activity prohibited above in this Section 4.7, Customer shall, and shall cause its End-Users to, immediately: (x) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Group-Provided SaaS Services, SaaS Software and SaaS Documentation and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (y) notify CERTUS HOLDCO, INC of any such actual or threatened activity. Customer shall promptly suspend access to the SaaS Services for (including, without limitation the Group-Provided LMS) any person who (i) ceases to qualify as an End-User, (ii) Customer no longer wishes to have access to the SaaS Services or the Group-Provided LMS, or (iii) Customer knows or reasonably believes is causing or will cause Customer to breach any provisions of the Agreement.
4.8 SaaS Software Services Monitoring. CERTUS HOLDCO, INC (through its applicable Affiliate(s)) may electronically monitor Customer’s use of the SaaS Services or the Group-Provided LMS for compliance with all the license terms and restrictions set forth in the Agreement and, in doing so, may utilize user engagement metrics reports and any other methods in its discretion. Customer hereby approves and consents to such electronic monitoring.
4.9 Limited License Grant by Customer. Subject to the terms and conditions of the Agreement, Customer hereby grants to CERTUS HOLDCO, INC, during the Term, a nontransferable, nonexclusive, limited license to use the Customer Content solely in connection with the SaaS Services. CERTUS HOLDCO, INC agrees not to remove, without consent of Customer, any trademark or copyright notices from the Customer Content.
4.10 Ownership of SaaS Services. Except for the Customer Content, as between Customer and CERTUS HOLDCO, INC, the CERTUS HOLDCO, INC has and shall retain sole and exclusive ownership of, and all right, title and interest in and to the Group-Provided LMS, the SaaS Services, SaaS Software, and SaaS Documentation, as well as any graphical user interface modifications made for Customer and all suggestions, ideas, improvements, data, feedback, evaluation materials, reports, presentations, designs, technology, inventions, know-how, works of authorship, software, specifications, modifications and other materials, information and any other intellectual property made, developed, conceived or reduced to practice, as they pertain to the SaaS Services (including, without limitation, the Custom Portal). The applicable Affiliate(s) of CERTUS HOLDCO, INC have and will retain sole control over the operation, provision, maintenance, and management of the Group-Provided LMS, the SaaS Services, SaaS Software or SaaS Documentation. CHC’s Affiliates may revise the features and functions of the Group-Provided LMS the SaaS Services, SaaS Software or SaaS Documentation or the Availability Requirement at any time, including without limitation by removing any features or functions and reducing the Availability Requirement; provided, however, that if any such revision materially reduces the features or functionality so as to impair or diminish the usefulness of the SaaS Services (including the Group-Provided LMS) to Customer, Customer may within thirty (30) days of the date of the CERTUS HOLDCO, INC notice of the revision terminate the Agreement, without cause, by written notice to CERTUS HOLDCO, INC which such termination shall be effective on that date that is sixty (60) days after the date of the CERTUS HOLDCO, INC notice of revision. CERTUS HOLDCO, INC reserves the right, in its sole discretion, to make any changes to the SaaS Services (including the Group-Provided LMS), SaaS Software or SaaS Documentation that it deems necessary or useful to maintain or enhance the quality or delivery of its services to its customers, the competitive strength of or market for CERTUS HOLDCO, INC ‘s services, or the SaaS Services’ cost efficiency or performance; or to comply with applicable law.
4.11 Customer Content and Systems. As between CERTUS HOLDCO, INC and Customer, Customer shall retain sole and exclusive ownership of, and all right, title and interest in and to the Customer Content, as well as any revisions, modifications to or derivative works created from the Customer Content, provided that nothing in this provision shall permit Customer to gain any ownership rights in the SaaS Software (including Group-Provided LMS) or SaaS Services or SaaS Documentation. Customer has and will retain sole control over the operation, maintenance, and management of, and all access to and use of, the Customer systems, and sole responsibility for all access to and use of the SaaS Services (including Group-Provided LMS), SaaS Software or SaaS Documentation by any person by or through the Customer systems or any other means controlled by Customer or any End-User, including any: (a) information, instructions, or materials provided by any of them to the SaaS Services (including the Group-Provided LMS) or CERTUS HOLDCO, INC ; (b) results obtained from any use of the SaaS Services (including the Group-Provided LMS), SaaS Software or SaaS Documentation; and (c) conclusions, decisions or actions based on such use. Customer controls which Customer Content is input in and through the SaaS Services (including the Group-Provided LMS). Customer, not CERTUS HOLDCO, INC or its Affiliates, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and intellectual property ownership or right to use of all Customer Content. Without limiting the generality of the preceding sentence, Customer is solely responsible for compliance of Customer Content and the use thereof with applicable law and the AUP. Neither CERTUS HOLDCO, INC nor its Affiliate(s) shall be responsible or liable for any deletion, destruction, damage or loss of any Customer Content that is caused by Customer or any End-User. Customer will not engage in any activities related to the SaaS Services (including the Group-Provided LMS) or any Customer Content that use excessive server resources, or may adversely affect any other clients or CERTUS HOLDCO, INC or its Affiliate(s). Customer acknowledges that, if indicated on the applicable fees provisions, it will share server resources with other CERTUS HOLDCO, INC clients or third parties. Customer recognizes and agrees that hosting Customer Content online involves risks of unauthorized disclosure or exposure and that, in accessing and using the SaaS Services (including the Group-Provided LMS), Customer assumes all such risks. Neither CERTUS HOLDCO, INC nor any of its Affiliates makes any representation or warranty or guarantee that the storage or transmission of Customer Content will be inaccessible to unauthorized third parties or that Customer Content will not be exposed or disclosed through errors or the actions of third parties. Customer shall direct to CERTUS HOLDCO, INC every verifiable request to delete the Personal Data of a subject of Personal Data that is received by Customer, and Customer will provide instructions to CERTUS HOLDCO, INC regarding such deletion request in accordance with applicable law.
4.12 Resultant Content. Customer hereby unconditionally and irrevocably grants to CERTUS HOLDCO, INC and its Affiliates an assignment of all right, title and interest in and to the data and information related to Customer’s and End-Users’ use of the SaaS Services (including the Group-Provided LMS) that is used by CERTUS HOLDCO, INC or its Affiliates in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the SaaS Services (“Resultant Content”), including all intellectual property rights relating thereto. CERTUS HOLDCO, INC and its Affiliates may gather, aggregate, compile and use Resultant Content in order to improve, develop or enhance the SaaS Services and/or other services offered, or to be offered, by CERTUS HOLDCO, INC ; provided that no Resultant Content is identifiable as originating from, or can be traced back to Customer or any of its End-Users, in such aggregated form.
4.13 Access Credentials. Upon receipt by CERTUS HOLDCO, INC of the registration information of Customer, the applicable CERTUS HOLDCO, INC Affiliate(s) will provide to Customer within a reasonable time thereafter usernames and passwords (“Access Credentials”) to be issued to End-Users in order to access the SaaS Services, including the Group-Provided LMS. Each End-User must have unique Access Credentials, which are determined by the Customer. Customer shall be solely responsible for the Customer’s and End-Users’ use of the SaaS Services and compliance with the Agreement. Customer shall ensure that only End-Users have access to any Access Credentials provided by CERTUS HOLDCO, INC and shall ensure that neither Customer nor End-Users disclose such Access Credentials to any other third party. Customer is solely responsible for strictly maintaining the confidentiality and integrity of such Access Credentials. Customer shall notify the applicable CERTUS HOLDCO, INC Affiliate(s) in writing upon any known or suspected unauthorized use of any Access Credential (including whether lost or stolen), the SaaS Services or any other breach of security or integrity that may impact the Agreement the CERTUS HOLDCO, INC, the SaaS Services (including the Group-Provided LMS). CERTUS HOLDCO, INC shall have no liability or responsibility with respect to any aspect of credentialing End-Users to utilize Customer-Provided LMS.
4.14 Customer Systems and Cooperation. Customer shall at all times during the Term: (a) set up, maintain and operate in good repair all Customer systems on or through which the SaaS Services are accessed or used; (b) be solely responsible for (i) understanding the requirements of laws applicable to Customer’s business, (ii) determining the suitability of the SaaS Services with respect to the type of Customer Content used with the SaaS Services, and (iii) select and use the SaaS Services in a manner that complies with the applicable laws; (c) cooperate with CHC’s (or its applicable Affiliate(s)’) investigation of outages, security problems, unauthorized use of the SaaS Services and/or any suspected breach of the Agreement, the AUP or any applicable law or court order; (d) use the SaaS Services and SaaS Documentation at its own risk; (e) conduct its own review and confirmation of any results or report generated from or in connection with the SaaS Services or SaaS Documentation; and (f) provide all cooperation and assistance as CERTUS HOLDCO, INC (or its Affiliate(s) may reasonably request to enable CERTUS HOLDCO, INC (or its Affiliate(s)) to exercise its rights and perform its obligations under and in connection with the Agreement. Neither CERTUS HOLDCO, INC nor any of its Affiliates will be responsible for any errors or issues that arise from the malfunction or failure of the Customer systems, connectivity or any Internet access services of Customer or its End-Users. Neither CERTUS HOLDCO, INC or its Affiliates are responsible or liable for any delay or failure of performance caused in whole or in part by Customer’s delay in performing, or failure to perform, any of its obligations under the Agreement.
4.15 Subcontractors. CERTUS HOLDCO, INC and its Affiliate(s) may from time to time in their discretion engage subcontractors. Customer acknowledges and consents to CHC’s and its Affiliate(s)’ use of a subcontractor as a hosting provider to CERTUS HOLDCO, INC.
4.16 Suspension or Termination of Services. CERTUS HOLDCO, INC and/or its Affiliates may, directly or indirectly, and by use of a disabling device or any other lawful means, suspend, terminate or otherwise deny Customer’s, any End-User’s, or any other person’s access to or use of all or any part of the SaaS Services (including the Group-Provided LMS), SaaS Software or SaaS Documentation, without incurring any resulting obligation or liability, if: (a) CERTUS HOLDCO, INC and/or its Affiliates receives a judicial or other governmental demand or order, subpoena or law enforcement request that expressly or by reasonable implication requires CERTUS HOLDCO, INC to do so; (b) CERTUS HOLDCO, INC and/or its Affiliates believes, in their good faith and reasonable discretion, that: (i) Customer or any End-User has failed to comply with any term of the Agreement, or accessed or used the SaaS Services (including the Group-Provided LMS) beyond the scope of the rights granted or for a purpose not authorized under the Agreement or in any manner that does not comply with any instruction or requirement of the SaaS Documentation; (ii) Customer or any End-User is, has been, or is likely to be involved in any fraudulent, misleading or unlawful activities relating to or in connection with any of the SaaS Services (including the Group-Provided LMS); or (iii) Customer or any End-User used or is using the SaaS Services in violation of any law or industry policies and practices, or otherwise in a manner deemed to be harmful to the SaaS Services; (c) Customer does not cooperate with a reasonable investigation of any suspected violation of the Agreement; (d) there is an attack on the SaaS Services or the SaaS Services (including the Group-Provided LMS) are accessed or manipulated by a third party without Customer’s consent; (e) suspension is required by any law, or a regulatory or government body, including any investigation of suspicious activities; (f) there is any event for which CERTUS HOLDCO, INC or any of its Affiliate(s) reasonably believes that the suspension of SaaS Services (including the Group-Provided LMS) is necessary to protect the CERTUS HOLDCO, INC systems or other customers of CERTUS HOLDCO, INC or any of its Affiliates; or (g) the Agreement expires or is terminated. This Section 4.16 does not limit any of CHC’s or any of its Affiliates’ other rights or remedies, whether at law, in equity or under the Agreement. CERTUS HOLDCO, INC and its Affiliates will use commercially reasonable efforts to provide Customer advance notice of a suspension resulting from any of the foregoing of at least twelve (12) business hours, unless CERTUS HOLDCO, INC or the applicable Affiliate(s) reasonably determines that a suspension on shorter or contemporaneous notice is necessary to protect the SaaS Services (including the Group-Provided LMS), the CERTUS HOLDCO, INC systems or other customers of CERTUS HOLDCO, INC or its Affiliates from imminent or significant operational, legal or security risk.
4.17 Service Provider. Customer acknowledges and agrees that it discloses Customer Content to CERTUS HOLDCO, INC and its Affiliates, and that CERTUS HOLDCO, INC and its Affiliates (and their respective subcontractors), as a service provider, processes the Customer Content on behalf of Customer pursuant to the Agreement for the Customer business purposes of performing the services as set forth in more detail in the Agreement. Customer represents and warrants that disclosing and sharing the Customer Content with CERTUS HOLDCO, INC and its Affiliates is necessary to perform such business purposes and that the use of the Customer Content by CERTUS HOLDCO, INC and its Affiliates is reasonably necessary and proportionate to achieve the operation of such business purposes. CHC’s (and its Affiliates’) use of the Personal Data is limited to that which is reasonably necessary or convenient to perform such business purposes.
4.18 Certification. CHC’s applicable Affiliate(s) certifies that such Affiliate(s) understands and will comply with the following restrictions: Such Affiliates will not sell the Personal Data; Such Affiliates will not retain, use or disclose the Personal Data for any purpose other than such business purposes or otherwise permitted under applicable law; and Such Affiliates will not retain, use or disclose the Personal Data outside of the direct business relationship between Customer and CERTUS HOLDCO, INC or its Affiliates.
4.19 Service Usage and Data Storage. The SaaS Services Agreement, other Project Documents or similar agreement sets forth fees for the designated level of usage (number of users, concurrent users, etc.), data storage and other components of the SaaS Services (“Service Allocation”). If Customer exceeds any Service Allocation component for any relevant period, CERTUS HOLDCO, INC or its Affiliate(s) may charge Customer additional fees or suspend the SaaS Services under Section 4.16. Customer acknowledges that exceeding its then-current Service Allocation may result in service degradation for Customer and other clients of CERTUS HOLDCO, INC or its Affiliates and agrees that: (a) CERTUS HOLDCO, INC and its Affiliates have no obligation to permit Customer to exceed its then-current Service Allocation; and (b) Customer is not entitled to any service credits for periods during which Customer exceeds its then-current Service Allocation, regardless of whether the Services fail to meet the Availability Requirement during such period.
4.20 CERTUS HOLDCO, INC Systems and Security Obligations. CERTUS HOLDCO, INC has implemented and will maintain reasonable administrative, technical and physical safeguards, security procedures and practices appropriate to the nature of the information designed to (a) ensure the confidentiality, integrity and availability of the Personal Data created, received, maintained or transmitted; (b) identify and protect against reasonably anticipated threats to the security or integrity of the Personal Data; (c) protect against reasonably anticipated, impermissible uses or disclosures of the Personal Data; and (d) provide proper disposal of the Personal Data, and ensure compliance by employees and agents (“Safeguards”). CERTUS HOLDCO, INC and/or Affiliate(s) may modify the Safeguards from time to time in accordance with changes to industry standards, legal requirements, etc. Neither CERTUS HOLDCO, INC nor any of its Affiliate(s) will have any liability for any harm or damages resulting from CERTUS HOLDCO, INC or such Affiliate(s) compliance with instructions received from Customer for processing any Customer Content or Personal Data. Where CERTUS HOLDCO, INC and/or its Affiliate(s) believes that compliance with Customer’s instructions could result in a violation of any law or is not in the ordinary course of its obligations in performing the SaaS Services, CERTUS HOLDCO, INC and/or its Affiliate(s) will notify Customer thereof. In order to provide the SaaS Services, Customer may disclose to CERTUS HOLDCO, INC certain Personal Data. To the extent permitted by applicable law, CERTUS HOLDCO, INC and/or its Affiliate(s) may disclose or use such nonpublic personal information in the ordinary course of business to carry out the SaaS Services. The parties agree that for purposes of processing the Personal Data: (i) Customer, as the manager of the Customer Content, will determine the purposes and means of processing the Personal Data; (ii) CHC’s applicable Affiliate(s), as a service provider to Customer, will process the Personal Data on behalf of and under the instructions of Customer; or (iii) as otherwise designated by an applicable authority with competent jurisdiction.
4.21 Data Breach Procedures. In the event of a data breach incident in connection with Personal Data in the custody or control of CERTUS HOLDCO, INC or any of its Affiliate(s), CERTUS HOLDCO, INC or its Affiliate(s), as applicable will promptly notify Customer upon having attained actual knowledge that a data breach incident has occurred. Customer, by the Agreement, instructs and has instructed CERTUS HOLDCO, INC and its Affiliates not to contact any subjects of Personal Data directly, unless required by applicable law. CERTUS HOLDCO, INC and its Affiliates will reasonably cooperate with Customer in responding to or addressing any request from a subject of Personal Data, a supervisory authority with jurisdiction, or the Customer, to the extent necessary to enable Customer to comply with its obligations under applicable law as the data controller. Customer will promptly reimburse CERTUS HOLDCO, INC and/or its Affiliate(s) for any out-of-pocket expenses and professional time at CHC’s (or its Affiliate(s)’) then-current hourly rates. Customer will provide prompt written notice to CERTUS HOLDCO, INC or its Affiliate(s)’ (with sufficient detailed instructions) of any subject of Personal Data request or other act that is required to be performed by CHC’s Affiliate(s)’ as the data processor on behalf of Customer as the data controller. In the event that a supervisory authority with jurisdiction makes the determination contrary to the Agreement that CERTUS HOLDCO, INC or its Affiliate(s)’ is a data controller, Customer will reasonably cooperate with CERTUS HOLDCO, INC to enable CERTUS HOLDCO, INC and/or its Affiliate(s) to comply with its obligations under applicable law. Notwithstanding the foregoing, CERTUS HOLDCO, INC may retain a copy of the Personal Data as permitted by applicable law, provided that such Personal Data remain subject to the terms of the Agreement.
4.22 Disaster Recovery. CERTUS HOLDCO, INC maintains a disaster recovery plan for the CERTUS HOLDCO, INC Systems that is tested annually.
4.23 Prohibited Data. Customer acknowledges that the B2B Services are not designed with security and access management for processing Prohibited Data. Customer shall not and shall not permit any End-User or other person to provide any Prohibited Data to, or process any Prohibited Data through, the B2B Services (including the SaaS Services), the CERTUS HOLDCO, INC systems or any CERTUS HOLDCO, INC personnel. Customer is solely responsible for reviewing all Customer Content and shall ensure that no Customer Content constitutes or contains any Prohibited Data.
4.24 Customer Control and Responsibility. Customer has and will retain sole responsibility and liability for: (a) all Customer Content, including its content, processing, accuracy, completeness, use and compliance with applicable law; (b) all information, instructions and materials provided by or on behalf of Customer or any End-User in connection with the SaaS Services (including the Group-Provided LMS); (c) Customer systems, the security thereof and the security of its access to, connection with and use of the SaaS Services; (d) the security, distribution and use of Customer’s and its End-Users’ Access Credentials; (e) all access to and use of the SaaS Services (including the Group-Provided LMS), SaaS Software and SaaS Documentation directly or indirectly by or through the Customer systems or its or its End-Users’ Access Credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions and actions based on, and activity resulting from, such access or use; (f) performing an appropriate risk assessment, in accordance with applicable law and before submitting any Personal Data to the SaaS Services (including the Group-Provided LMS), to determine whether the Safeguards provide an adequate level of security, taking into account the nature, scope, context and purposes of the processing, the risks associated with the Personal Data, and any applicable law; (g) ensuring that its instructions to CERTUS HOLDCO, INC and its Affiliates for processing of the Personal Data comply with applicable law; (h) providing notice to the subjects of Personal Data that their respective Personal Data will be shared with and used by CERTUS HOLDCO, INC and its Affiliates, and their subcontractors, as a service provider to Customer, and not sold to CERTUS HOLDCO, INC, its Affiliates or their subcontractors as third parties; (i) Customer representations regarding the extent to which Customer is entitled to process Personal Data; and (j) any information or materials that are unlawful or injurious, or contain, transmit or activate any harmful code that is input, uploaded or transmitted to or through the SaaS Services (including the Group-Provided LMS) or CERTUS HOLDCO, INC systems as Customer Content, and the consequences thereof.
4.25 Customer Warranty. Customer represents, warrants and covenants to CERTUS HOLDCO, INC and its Affiliates that it (a) owns or otherwise has, and will have, the necessary rights and authority (including consents and notices under applicable law) in and relating to the Customer Content (including Personal Data), in order to provide such Customer Content to CERTUS HOLDCO, INC and its Affiliates in connection with the SaaS Services, such that, as received by CERTUS HOLDCO, INC or its Affiliates and processed in accordance with this Agreement, CERTUS HOLDCO, INC and its Affiliates do not and will not infringe, misappropriate or otherwise violate any intellectual property rights, or any privacy or other rights of any third party or violate any applicable law; (b) has processed and provided the Personal Data to CERTUS HOLDCO, INC and its Affiliates in accordance with applicable law; and (c) will limit the Personal Data provided to CERTUS HOLDCO, INC or its Affiliates to Personal Data necessary to perform the SaaS Services (including the Group-Provided LMS).
4.26 Access and Security. Customer shall employ all physical, administrative and technical controls, screening and security procedures and other Safeguards necessary to: (a) securely administer the distribution and use of (including the Group-Provided LMS) all Access Credentials and protect against any unauthorized access to or use of the SaaS Services; and (b) control the content and use of Customer Content, including the uploading or other provision of Customer Content for processing by the SaaS Services.
5. TERM AND TERMINATION
5.1 Term. The term of this Agreement and the B2B Service to be provided under the Agreement (the “Term”) commences on the Effective Date, and, unless terminated earlier as provided in the Agreement, ends: (x) with respect to the CERTUS HOLDCO, INC Online Training System, on the date of the end of the active duration of the Custom Portal, (y) with respect to CERTUS HOLDCO, INC Onsite, on the date that the subject courses are concluded pursuant to the Project Documents, and (z) with respect to SaaS Services (including the Group-Provided LMS), on the date that is twelve (12) months from the Effective Date (unless the Project Documents provide for a longer duration); in each case unless and to the extent otherwise provided the applicable Project Document(s) (including, without limitation the SaaS Services Agreement(s), if any). Notwithstanding the foregoing, the Term with respect to the CERTUS HOLDCO, INC Online Training System shall automatically renew at the end of each then-current term (at then-current rates) unless Customer provides a written notice of non-renewal within sixty (60) days prior to the end of the then-current Term. In the event that any party to the Agreement ceases to conduct business in the ordinary course, becomes insolvent, files for bankruptcy protection or similar relief or makes an assignment for the benefit of its creditors, or has a receiver appointed for its assets, then the other party may at its option terminate the remaining Term by written notice to the non-terminating party.
5.2 Termination for Non-Payment. CERTUS HOLDCO, INC or its applicable Affiliate(s) may terminate the Agreement and cease all B2B Services (including, without limitation the SaaS Services) to Customer if Customer fails to pay any amount due and owing to the CERTUS HOLDCO, INC or its Affiliate(s) within thirty (30) days after written notice to Customer that such payment is delinquent.
5.3 Termination for Cause. Each party shall notify the other in writing in case of the other’s alleged violation of a material provision of the Agreement or the applicable Project Document(s). The recipient shall have, except to the extent specifically otherwise agreed in writing by the parties and except as provided in Section 4.2 (a) with respect to SaaS Services outage, thirty (30) calendar days from the date of receipt of such notice to effect a cure such violation (the “Cure Period”). If the recipient of such notice fails to effect such cure within the Cure Period, then the sender of such notice shall have the option of sending a written notice of termination, which notice shall take effect upon receipt, and such sender shall thereafter have such remedies as are provided at law, in the Agreement and the applicable Project Documents.
5.4 Effect of Termination or Expiration. Upon termination or expiration of the Agreement or the B2B Services to be provided hereunder: (i) all amounts owed by Customer to CERTUS HOLDCO, INC or its Affiliates or accrued by CERTUS HOLDCO, INC or its Affiliates for the B2B Services shall become due and payable on the effective date of such termination, (ii) all rights and licenses granted to Customer by CERTUS HOLDCO, INC or its Affiliates in connection with the B2B Services, including, without limitation, the licenses described in Sections 6.3 and 6.4 hereunder and access to the Custom Portal, shall immediately terminate, (iii) Customer shall immediately cease all use Group Content Software and any B2B Services, and shall deliver to CERTUS HOLDCO, INC (or the applicable Affiliate(s)) all tangible embodiments of any software, SaaS Software, SaaS Documentation, and Confidential Information, (iv) Customer shall immediately permanently delete or destroy any data or software installed in a Customer’s computer system downloaded from SaaS Services (including the Group-Provided LMS) except for data residing on the business continuity or emergency backup system of Customer, which shall be destroyed in accordance with its record retention policies, (v) CERTUS HOLDCO, INC (or the applicable Affiliate(s)) shall return to Customer all tangible embodiments of the Customer Content and Confidential Information, and (vi) Customer may, within seven (7) days of the effective date of termination, download any Customer Content; provided, that after such period CERTUS HOLDCO, INC (or the applicable Affiliate(s)) may delete any Customer Content without liability.
5.5 Survival. Any provision of the Agreement or other written agreement of the parties that by its very nature or context is intended to survive any termination, cancellation or expiration thereof, including without limitation confidentiality and indemnification provisions for the period set forth therein, shall so survive and remain the binding obligations of the parties hereto.
5.6 Early Termination; Refunds. In the event of any early cancellation or termination of the Term of any B2B Services to be provided under the Agreement, the following shall apply:
(a) CERTUS HOLDCO, INC Online Training System: If Customer cancels or terminates a subscription to the CERTUS HOLDCO, INC Online Training System within the first twelve (12) months of a subscription period, then Customer will pay an early termination fee (the “Early Termination Fee”) in an amount equal to fifty percent (50%) of the fees that would have been due and payable for the remainder of such subscription period; provided, however that the Early Termination Fee shall be an amount equal to one hundred percent (100%) of the fees that would have been due and payable for the remainder of such subscription period, if the duration of such subscription period is twelve (12) months or less. In the event Customer has prepaid the fees for the entire subscription period, then CERTUS HOLDCO, INC shall be entitled to retain, from such prepaid fees, an amount equal to the Early Termination Fee.
(b) All other B2B Services: In connection with any early cancellation or termination of B2B Services other than a subscription to the CERTUS HOLDCO, INC Online Training System, Customer shall owe cancellation charges or similar fees as provided in the applicable Project Documents.
(c) Offset against Prepaid Amounts; Deficiency Liability. In connection with any early cancellation or termination of B2B Services to be provided under the Agreement, CERTUS HOLDCO, INC and its Affiliates shall have the right to offset, against amounts prepaid by Customer in respect of B2B Services (including the SaaS Services), any and all fees, costs, and charges (including, without limitation the Early Termination Fees, cancellation charges, or other similar fees as provided in these GTCs, the Project Documents or elsewhere in this Agreement) owed by Customer under the Agreement. The applicable Affiliate(s) within CERTUS HOLDCO, INC shall promptly refund to Customer any amounts (if any) remaining after such right of offset. Customer shall remain liable for any deficiency remaining after the application of such right of offset.
5.7 Audit and Inspection. CERTUS HOLDCO, INC and its Affiliates shall maintain and preserve records in respect of the B2B Services rendered to Customer, including information related to payments made and the CERTUS HOLDCO, INC ‘s performance under the Agreement in accordance with its commercially reasonable policies and practices. Customer may in writing request information pertinent to the CERTUS HOLDCO, INC Affiliate(s)’ performance of its/their obligations under the Agreement, and CERTUS HOLDCO, INC agrees to cooperate with respect to any such commercially reasonable requests; provided, however, that CERTUS HOLDCO, INC may redact any portion of any information or records containing Confidential Information of CERTUS HOLDCO, INC or any third party.
6. PROPRIETARY RIGHTS
6.1 Proprietary Rights. All patents, copyrights, trade secrets, methodologies, ideas, inventions, concepts, know-how, techniques or other intellectual property developed or provided by CERTUS HOLDCO, INC or any of its Affiliates, including, except as specifically set forth in a Project Document, all written reports, analyses, training materials, student or corporate client lists, and other working papers delivered by CERTUS HOLDCO, INC or any of its Affiliates, to Customer in the performance of any B2B Services, including under any Project Documents (“Work Product”) are and remain the property of CERTUS HOLDCO, INC or the applicable Affiliate(s) (“CERTUS HOLDCO, INC Proprietary Rights”). Nothing herein shall preclude CERTUS HOLDCO, INC or any of its Affiliates, from developing, using or marketing services or materials that are similar or related to such Work Product to or for other parties. Subject to the limitations set forth in Section 11 of these GTCs or elsewhere in the Agreement, CERTUS HOLDCO, INC or its applicable Affiliate(s) shall indemnify Customer from and against any claim by a third party that Work Product or a B2B Service or Group Content provided hereunder or elsewhere in the Agreement or Customer’s use thereof infringes upon the U.S. patent, trademark, copyright, trade name or other intellectual property rights of such third party (such third party claim, an “Infringement Claim”) and pay the resulting damages and costs awarded against Customer as set forth in a final, non-appealable judgment entered by a court of competent jurisdiction; provided that Customer (i) notifies CHC’s Chief Financial Officer promptly in writing of such Infringement Claim, (ii) grants CERTUS HOLDCO, INC or its applicable Affiliate(s) sole control over the defense and settlement thereof, and (iii) reasonably cooperates in response to a request for assistance from CERTUS HOLDCO, INC or its applicable Affiliate(s). Should any Work Product or B2B Service become, or in CHC’s (or its applicable Affiliate’s) opinion be likely to become, the subject of an Infringement Claim, CERTUS HOLDCO, INC or its applicable Affiliate(s) shall, at its option and expense, (a) procure for Customer the right to make continued use thereof, (b) replace or modify such so that it becomes non-infringing, or (c) request return of the Work Product and upon receipt thereof refund the price paid by Customer, less straight-line depreciation based on a five (5) year useful life or discontinue the B2B Service and refund the portion of any prepaid B2B Service fee that corresponds to the period of B2B Service discontinuation. CERTUS HOLDCO, INC shall have no liability to the extent the alleged infringement is based on (1) combination with non-CHC, B2B Service or Group Content Group approved products, (2) use for a purpose or in a manner for which the Work Product was not approved, (3) any modification not made with CHC’s (or its applicable Affiliate’s) written approval, (4) any modifications made by CERTUS HOLDCO, INC or its Affiliate’s pursuant to Customer’s specific instructions, or (5) any intellectual property right owned or licensed (other than hereunder) by Customer. THIS SECTION, AS LIMITED BY THE PROVISIONS OF SECTION 11, STATES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND CERTUS HOLDCO, INC ‘S ENTIRE LIABILITY FOR INFRINGEMENT CLAIMS.
6.2 Customer Furnished Materials and Use. As between CERTUS HOLDCO, INC and Customer, all Customer Content furnished by Customer for use by CERTUS HOLDCO, INC in connection with the B2B Services shall remain Customer property.
6.3 Work Product License. Subject to Customer’s payment in full for the fees under the Project Documents, Customer is licensed, during the Term, to use the CERTUS HOLDCO, INC Proprietary Rights internally, for the purpose for which the Work Product was provided, on a limited, revocable, nonexclusive, nontransferable basis to the extent granted under and in accordance with these GTCs and the Project Documents. Customer shall not sublicense or otherwise transfer to any third party any Work Product or CERTUS HOLDCO, INC Proprietary Rights.
6.4 Software License. Any license granted to Customers by CERTUS HOLDCO, INC or any of its Affiliate(s) to use its software in conjunction with any of the B2B Services shall consist solely of a revocable, nonexclusive, nontransferable and non-sublicensable right to use such software during the Term and only in direct connection with the applicable B2B Services for Customer’s internal business purposes.
7. CONFIDENTIALITY
7.1 Confidential Information. The receiving party shall protect the other’s Confidential Information, by means of the same standard of care as used by the receiving party to protect its own information of a similar nature and importance, and no less than reasonable care. The receiving party shall use Confidential Information only to fulfill its obligations or to exercise its rights hereunder and shall disclose Confidential Information only to those persons in its organization who have a need to know such Confidential Information in the performance of their duties in connection herewith and who are bound by a written agreement to protect the confidentiality of such Confidential Information, and the receiving party will promptly report to the disclosing party any actual or suspected breach hereof.
7.2 Publicity. Each party shall not, and shall not authorize or assist another to, originate or produce any written publicity, news release, marketing collateral or other publication or public announcement, relating in any way to the Agreement, without the prior written approval of the other, which approval shall not be unreasonably withheld. The terms of the Agreement (including the applicable Project Document(s), but not their existence, are Confidential Information.
8. INVOICING AND PAYMENT
8.1 Payment. One or more of CHC’s Affiliate(s), as applicable, shall submit to Customer invoices for fees and reimbursable costs and expenses and be paid in the manner specified in the applicable Project Document(s). Except to the extent otherwise provided in the applicable Project Documents, all such invoices are payable net 30 days. All amounts are due in United States Dollars. Customer shall also pay all related taxes and withholdings, except for those based on CERTUS HOLDCO, INC ‘s personnel or net income. Customer agrees and acknowledges that, in the event Customer accesses any Group Content or otherwise uses the B2B Services following the expiration of the Term (or any renewals thereof), the applicable CERTUS HOLDCO, INC Affiliate(s) shall have the right to invoice Customer at then-current rates and all such invoices shall be subject to the payment terms as set forth in this Section 8.1.
9. REPRESENTATIONS AND WARRANTIES; DISCLAIMERS
9.1 By Customer. Customer represents and warrants to CERTUS HOLDCO, INC that (i) Customer and/or its clients own all rights in, or have a right to sublicense the use of, any web site content provided to CERTUS HOLDCO, INC or its Affiliates by Customer and/or its clients, (ii) all Customer Content including web site content provided by Customer and/or its clients to CERTUS HOLDCO, INC or its Affiliates does not infringe the rights of any third party and does not contain libelous or defamatory statements, (iii) it has the full right, power and authority to enter into and perform under the Agreement, and to execute and deliver and perform its duties and obligations under any and all Project Document(s), (iv) the person executing any such Project Document(s), these GTCs, or any other component of the Agreement is duly authorized by Customer to legally bind customer to the provisions of such documents, and (v) the Agreement (including the applicable Project Document(s) and these GTCs) constitutes a legal, valid and binding obligation of Customer enforceable against Customer pursuant to its terms.
9.2 By CERTUS HOLDCO, INC. The applicable Affiliate(s) within CERTUS HOLDCO, INC represent(s) and warrant(s) to Customer that: (a) such Affiliate(s):(i) owns all rights in, or has a right to license the use of CERTUS HOLDCO, INC Training Systems Courseware, Pre- and Post-Tests, and CERTUS HOLDCO, INC Online Training System, the Custom Portal provided to Customer by the applicable Affiliates within the CERTUS HOLDCO, INC, without known infringement on the rights of any third party, (ii) owns all rights in, or has a right to grant to Customer access to the SaaS Software without known infringement on the rights of any third party (iii) has the full right, power and authority to enter into and perform under the Agreement, and to execute and deliver and perform the applicable Project Document(s) to which it is a party; and (iv) have duly authorized the person executing any such documents to execute and deliver such document to Customer; and (b) the Agreement and any related Project Document(s) to which it is a party constitutes a legal, valid and binding obligation of such Affiliate(s) enforceable against such Affiliate(s) pursuant to the terms thereof. The applicable Affiliate(s) within the CERTUS HOLDCO, INC shall perform B2B Service (including the SaaS Services) in a workmanlike manner in accordance with the Project Document(s) to which it is a party, these GTCs, and generally accepted industry standards. Customer must notify the applicable CERTUS HOLDCO, INC Affiliate in writing of any failure of such Affiliate(s) identified therein to so perform within ten (10) days after the date on which such failure first occurs.
9.3 DISCLAIMERS AND EXCLUSIONS:
(A) GENERALLY. CUSTOMER AGREES AND ACKNOWLEDGES THAT THE B2B SERVICES ARE PROVIDED “AS IS” AND CERTUS HOLDCO, INC AND ITS AFFILAITE(S) MAKE NO WARRANTIES, WRITTEN OR ORAL, EXPRESS OR IMPLIED, AS SET FORTH IN THESE GTCS OR IN THE APPLCIABLE PROJECT DOCUMENTS ALL OTHER WARRANTIES ARE SPECIFICALLY EXCLUDED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, AND ANY WARRANTY ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING OR PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITATION OF THE GOREGOING CERTUS HOLDCO, INC AND ITS AFFILIATES DO NOT WARRANT THAT THE SAAS SERVICES WILL BE UNINTERRUPTED FOR ANY REASON (INCLUDING INTERRUPTIONS CAUSED BY MALICIOUS INTERFERENCE BY UNAUTHORIZED PERSONNEL), ERROR-FREE OR WITHOUT DELAY AND SHALL NOT BE LIABLE FOR ANY LOSS OF DATA.
(B) DISCLAIMERS REGARDING GROUP CONTENT SUPPORT SERVICES, SAAS SUPPORT SERVICES AND DATA BACKUP. IN ADDITION TO, AND WITHOUT LIMITATION OF THE FOREGOING, CUSTOMER ACKNOWLEDGES AND AGREES THAT ANY ASSISTANCE PROVIDED BY CERTUS HOLDCO, INC OR ITS AFFILIATES IN CONNECTION WITH THE PROVISION OF GROUP CONTENT SUPPORT SERVICES OR, IF APPLICABLE, THE SAAS SUPPORT SERVICES (COLLECTIVELY, THE “SUPPORT SERVICES”) SHALL NOT CREATE ANY ADDITIONAL (OR ALTER ANY EXISTING) OBLIGATION OR LIABILITY OF CERTUS HOLDCO, INC OR ITS AFFILATES OTHER THAN AS SET FORTH IN THE AGREEMENT OR WAIVE ANY LIABILITY DISCLAIMER BY CERTUS HOLDCO, INC OR ITS AFFILIATES HEREIN. NEITHER CHC, NOT ANY OF ITS AFFILIATES, HAS ANY OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION OR RECOVERY OF CUSTOMER CONTENT, UNLESS CAUSED BY THE RECKLESSNESS OR WILLFUL MISCONDUCT OF CERTUS HOLDCO, INC OR ITS AFFILIATE(S). BACKUP FILES WILL BE MAINTAINED FOR NO LONGER THAN SEVEN (7) DAYS ON A SERVER ACCESSIBLE BY CUSTOMER VIA URL (I.E., SECURE FILE TRANSFER PROTOCOL OR EXPLICIT APPLICATION(S), IF APPLICABLE) FROM WHICH CUSTOMER MAY RETRIEVE THE DATABASE BACKUPS AT ANY TIME, UNLESS STATED OTHERWISE IN THE AGREEMENT. CUSTOMER AGREES AND ACKNOWLEDGES THAT CERTUS HOLDCO, INC OR ITS AFFILIATES MAY DESTROY ANY AND ALL BACKUPS (INCLUDING BACKUPS OF CUSTOMER CONTENT OR COURSE ADMINISTRATION DATA) SEVEN (7) DAYS AFTER CREATED AND CUSTOMER CONSENTS THERETO. IN THE EVENT OF A FORCE MAJEURE OR ANY LOSS, DESTRUCTION, DAMAGE OR CORRUPTION OF CUSTOMER CONTENT OR COURSE ADMINISTRATION DATA CAUSED BY THE CERTUS HOLDCO, INC SYSTEMS OR SAAS SERVICES, CERTUS HOLDCO, INC WILL, AS ITS SOLE OBLIGATION AND LIABILITY AND AS CUSTOMER’S SOLE REMEDY, USE COMMERCIALLY REASONABLE EFFORTS TO RESTORE THE CUSTOMER CONTENT OR COURSE ADMINISTRATION DATA, AS APPLICABLE, FROM CERTUS HOLDCO, INC ‘S THEN MOST CURRENT BACKUP OF SUCH CUSTOMER CONTENT OR CUSTOMER ADMINISTRATION DATA. CUSTOMER RELEASES CERTUS HOLDCO, INC FROM LIABILITY FOR LOSS OF DATA TO THE EXTENT THAT THE CUSTOMER CONTENT OR COURSE ADMINISTRATION DATA CHANGED SINCE THE LAST TIME THAT A BACKUP WAS REQUIRED TO BE PERFORMED.
10. INDEMNIFICATION.
10.1 By Customer. Customer shall defend, indemnify and hold CERTUS HOLDCO, INC and each of its Affiliates harmless from and against any losses, damages, costs, fees (including reasonable and documented legal fees) and reasonable expenses incurred by and/or awarded against CERTUS HOLDCO, INC or such Affiliates as a result of or in connection with (i) any claim by any user relating to or arising from the CERTUS HOLDCO, INC Online Training System or CERTUS HOLDCO, INC Onsite course materials or other Group Content, (ii) any modification by Customer or any user to the CERTUS HOLDCO, INC Online Training System or CERTUS HOLDCO, INC Onsite course materials or other Group Content, (iii) any claim that any Customer Content or any other materials or data provided by Customer to the CERTUS HOLDCO, INC (for use on the CERTUS HOLDCO, INC Online Training System website or CERTUS HOLDCO, INC Onsite Group Content, SaaS Services (including the Group-Provided LMS) or otherwise) infringes or misappropriates the intellectual property rights of any third party, (iv) use by Customer of the B2B Services (including the Group-Provided LMS), and (v) any breach or violation by Customer of the representations, warranties, covenants and terms of the Agreement (including the applicable Project Document(s)).
10.2 By CERTUS HOLDCO, INC. Subject to the limitations set forth in Section 11 below and elsewhere in the Agreement, the applicable Affiliate(s) within CERTUS HOLDCO, INC shall indemnify and hold Customer harmless from and against any losses, damages, costs, fees (including reasonable and documented legal fees) and reasonable expenses awarded against Customer, as set forth in a non-appealable final judgment against Customer entered by a court of competent jurisdiction in which such court finds that the amounts so awarded were incurred as a direct result of such Affiliate’s gross negligence or willful misconduct in connection with its performance of the B2B Services; provided that any Infringement Claim arising from Customer’s or End User’s use of any software, including the SaaS Software (except to the extent that such claim arises out of compliance with Customer’s designs, drawings, instructions, or other requirement) shall be subject solely to (and indemnifiable solely under) the provisions of Section 6.1 of these GTCs.
10.3 Indemnification Procedures. If a party entitled to indemnification in accordance with these GTCs (the “Indemnified Party”) receives notice of any claim or other commencement of any action or proceeding with respect to which the other party is obligated to provide indemnification pursuant to these GTCs (the “Indemnifying Party”), the Indemnified Party shall promptly notify the Indemnifying Party in writing of any claim, action, demand or lawsuit for which the Indemnified Party intends to claim indemnification hereunder (provided, however, that the failure to give such notice shall not relieve the Indemnifying Party from its obligations hereunder, except to the extent that the Indemnifying Party is prejudiced by such delay). The Indemnifying Party has the right to take control of the defense of all actions that are indemnified against hereunder; provided, however, the Indemnifying Party shall not have the right to settle or compromise any claim involving the admission of liability, injunctive relief, or which could set a precedent that may be reasonably considered to have a negative effect on the Indemnified Party’s business, without the written consent of the Indemnified Party, which consent shall not be unreasonably withheld, conditioned, or delayed. The Indemnified Party shall cooperate with the Indemnifying Party and its legal representatives in the investigation and defense of any action covered by this indemnification. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its counsel and at its own expense; provided, however, that if the Indemnified Party, in its sole discretion, determines that there exists a conflict of interest between the Indemnifying Party (or any constituent party thereof) and the Indemnified Party, the Indemnified Party (or any constituent party thereof) shall have the right to engage separate counsel, the reasonable costs and expenses of which shall be paid by the Indemnified Party.
11. LIMITATIONS OF LIABILITY
11.1 THE TOTAL LIABILITY OF EACH OF CERTUS HOLDCO, INC (ON THE ONE HAND) AND CUSTOMER (ON THE OTHER HAND), AND THEIR SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIM WHATSOEVER, INCLUDING BUT NOT LIMITED TO CLAIMS BASED UPON CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR IN TORT, THAT ARISES OUT OF OR IN CONNECTION WITH THE AGREEMENT AND THE B2B SERVICES PROVIDED UNDER THE AGREEMENT, SHALL BE LIMITED TO THE LESSER OF (X) THE AMOUNT OF PROVEN DIRECT DAMAGES AS DETERMINED IN A NON-APPEALABLE FINAL JUDGMENT ENTERED BY A COURT OF COMPETENT JURISDICTION, AND (Y) AN AMOUNT EQUAL TO THE AGGREGATE AMOUNT PAID BY CUSTOMER TO CERTUS HOLDCO, INC AND ITS AFFILATES FOR THE SPECIFIC B2B SERVICES FROM WHICH SUCH CLAIM ARISES, FOR THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE SPECIFIC EVENT FROM WHICH THE CLAIM ARISES. NEITHER PARTY SHALL (A) HAVE LIABILITY TO THE OTHER FOR ANY SPECIAL, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, OR INDIRECT DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, REVENUES, DATA AND/OR USE), EVEN IF ADVISED OF THE POSSIBILITY THEREOF; OR (B) BRING ANY CLAIM BASED ON PRODUCT OR SERVICE PROVIDED HEREUNDER MORE THAN TWELVE (12) MONTHS AFTER THE CAUSE OF ACTION ACCRUES.
11.2 FOR NEW JERSEY RESIDENTS, TO THE EXTENT ANY TERM HEREOF IS SUBJECT TO THE NEW JERSEY TRUTH-IN-CONSUMER CONTRACT, WARRANTY AND NOTICE ACT (“TCCWNA”) AND SUCH TERM, IF ENFORCED AS PROVIDED HEREIN, IS CONTRARY TO OR VIOLATIVE OF ANY CLEARLY ESTABLISHED RIGHT YOU HAVE UNDER STATE OR FEDERAL LAW, SUCH OFFENDING TERM(S) SHALL BE DEEMED OMITTED FROM THESE TERMS (AND SUCH USER AGREEMENT), AND YOUR AGREEMENT TO THESE TERMS DOES NOT AND WILL NOT IN ANY WAY CONSTITUTE A WAIVER OF YOUR RIGHTS UNDER THE TCCWNA.
12. GENERAL
12.1 Related Agreements; Entire Agreement. In the event of any conflict or inconsistency between these GTCs any applicable Project Document(s), or any other components of the Agreement these GTCs shall control, other than with respect to Section 5.1 (Term and Termination) and Section 8.1 (Payment), in which case the terms of the applicable Project Documents shall control. The provisions of the Agreement (including the applicable Project Document(s)) shall supersede and govern to the extent of any conflict or inconsistency with any purchase order or terms and conditions of sale of Customer. The Agreement (including the Project Documents referenced herein) contains the entire agreement of the parties with respect to the subject matter hereof and thereof, and supersedes all previous oral and written communications, representation, understandings, and agreements by the parties concerning the subject matter of the Agreement.
12.2 Severability. If any provision of these GTCs or the Agreement hereof shall be held illegal or unenforceable, such provision shall be deemed separable from, and shall in no way affect or impair the validity or enforceability of, the remaining provisions.
12.3 Assignment. Neither party shall assign, without the prior written consent of an authorized representative of the other, any right or interest hereunder (excepting moneys due or to become due), (which consent shall not be unreasonably withheld, conditioned or delayed except as otherwise provided herein), nor delegate any work or other obligation to be performed hereunder to any entity other than (with prior written notice to the other party) its corporate parent, or a division or wholly or majority owned (or “controlled”, as defined in this Section 12.3) subsidiary of the party or its corporate parent. Any such action or attempted action in violation of the foregoing shall be void. In the event of the sale of all or substantially all of the equity or assets of Customer, Customer shall deliver written notice thereof to CHC, together with the written undertaking of the purchaser or surviving entity which shall provide that such purchaser or surviving entity agrees to be fully bound by the terms and conditions of the Agreement (including these GTCs and the applicable Project Document(s)). Following receipt of such notice, CERTUS HOLDCO, INC shall have the option, to the extent that it reasonably determines that the creditworthiness of such purchaser or surviving entity is materially adversely different than Customer as of the Effective Date, to terminate the Agreement, withhold its consent to assignment, or condition its consent to assignment to require from the potential assignee, without limitation, guaranties or other security for payment or performance of the obligations of Customer hereunder. For purposes of this Section 12.3 “controlling”, “controlled” or “control” means possessing, directly or indirectly, the power for any reason whatsoever, including without limitation by ownership of voting securities, by contract, by position, or otherwise to direct or cause the direction of the management and policies of such person (whether a natural person or a legal entity).
12.4 Similar Activities. Nothing contained herein shall be construed as preventing CERTUS HOLDCO, INC or any of its Affiliates from developing, acquiring, marketing, selling, supporting or maintaining products and/or services similar to those described herein, or from entering into similar agreements with other entities, provided that in so doing, there is no breach of obligations under Section 7 (Confidentiality).
12.5 Independent Contractors. The parties shall act as independent contractors for all purposes under the Agreement. Nothing contained herein shall be deemed to constitute either party as an agent or representative of the other party, an employer-employee relationship between or among the parties, or both parties as joint venturers or partners for any purpose. Neither party shall be responsible for the acts or omissions of the other party, and neither party will have authority to speak for, represent or obligate the other party in any way without the prior written approval of the other party.
12.6 Equitable Relief. CERTUS HOLDCO, INC and/or its Affiliates may, without limiting its other rights and remedies, be entitled to seek equitable relief, including but not limited to injunctive relief. Without limitation of the foregoing, the parties agree that a material breach by of Section 7 (Confidentiality) or, if applicable, Section 4.7 (SaaS Software Restrictions), by Customer or its End Users would cause irreparable injury to CERTUS HOLDCO, INC and/or its Affiliates for which monetary damages alone would not be an adequate remedy, and therefore CERTUS HOLDCO, INC and/or its Affiliates shall be entitled to equitable relief in addition to any other remedies it may have hereunder or at law, without the requirement of posting bond or proving actual damages.
12.7 Governing Law and Compliance with Laws. Each party shall comply with all applicable export laws, orders and regulations and obtain all necessary governmental permits, licenses and clearances. This Agreement shall be governed by the laws of the State of Delaware, excluding its conflict-of-law rules. The parties further agree that all disputes under the Agreement will be exclusively resolved in the state or Federal courts with jurisdiction located in Orlando, Florida, U.S.A., and the parties hereby waive any jurisdictional or venue defenses otherwise available. This choice of jurisdiction and venue shall not prevent either party from seeking injunctive relief with respect to a violation of intellectual property rights, confidentiality obligations or enforcement or recognition of any award or order in any appropriate alternative jurisdiction.
12.8 Attorney’s Fees and Costs. In the event a suit or action with respect to the Agreement (including these GTCs or the applicable Project Documents) is commenced, including actions for indemnification, the prevailing party shall be entitled to recover reasonable attorneys’ fees and other costs.
12.9 No Waiver. No waiver of any breach or default shall be effective against CERTUS HOLDCO, INC or any of its Affiliates unless in writing signed by CERTUS HOLDCO, INC or the applicable Affiliates; and no such waiver shall constitute a waiver of (i) any other right or remedy hereunder, or (ii) any subsequent breach or default.
12.10 Force Majeure. A party shall be excused for delays in the performance of its obligations hereunder due to causes beyond its reasonable control and that could not have been avoided through the exercise of reasonable care, such as, but not limited to, acts of God, acts or omissions of civil or military authorities, fires, floods, epidemics, quarantine restrictions, war, riots, strikes, or the unavailability of necessary labor, materials, or manufacturing facilities (the “Force Majeure”). The party whose performance is being adversely affected shall (i) promptly notify the other of the nature of the Force Majeure and the obligations adversely affected thereby; (ii) make all reasonable efforts to resume performance as soon as is reasonably possible and mitigate the adverse effects of the Force Majeure. If the Force Majeure causes a delay of ninety (90) or more days from the original date of performance, the other party shall have the right to terminate the Agreement or the applicable Project Document(s).
12.11 Notices. Except as may be otherwise be specifically provided to the contrary, all notices, requests, demands, claims and other communications hereunder shall be in writing and shall be deemed duly given when sent by electronic mail (with evidence of receipt, such as by the “return receipt requested” function, as available, or by return e-mail or other written acknowledgement from the intended recipient) to the e-mail address of the recipient designated in the Project Documents as the person authorized to receive notice on behalf of a party (or to such other person or email address as any party may designate for itself by notice to the other parties given in accordance with this Section 12.11); provided, however, that with respect to Infringement Claims, written notice thereof shall be sent to the attention of CHC’s Chief Financial Officer via e-mail to : ________________ (or to such other person or email address as CERTUS HOLDCO, INC may designate for itself by notice to Customer given in accordance with this Section 12.11) and shall be deemed duly given solely upon receipt of written acknowledgment from the recipient of such notice.
12.12 Survival. The provisions of these GTCs which by their very nature are intended to survive the expiration or termination of the Agreement or any component thereof (including without limitation, these GTCs) shall survive the termination or expiration of the Agreement (or any component thereof, including these GTCs) and remain the binding obligations of the parties hereto.
12.13 Export Laws. Export laws of the United States and any other relevant local export laws may apply to the B2B Services. Customer agrees that, to the extent applicable, such export laws govern its use of the B2B Services (including technical data) and any materials provided under the Agreement, and Customer agrees to comply with all such export laws. Customer agrees that no data, information, software programs, or other materials resulting from B2B Services (or direct product thereof) will be exported, directly or indirectly, in violation of these laws.
12.14 Counterparts; Electronic Execution and Delivery. These GTCs may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together, and together with the Project Documents and other components of the Agreement, shall constitute a single contract. Counterparts may be delivered via electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.